Search Warrants - Is it a rubber stamping process ?

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A - and- Her Majesty's Revenue & Customs ("HMRC") : Challenge, the lawfulness of a search warrant issued by HMRC in the HIGH COURT OF JUSTICE -

Some clarification on this point has been provided in a recent case in which we acted on behalf of the Claimant. In this case a number of warrants were issued by the court allowing HMRC to search a number of premises and for a wide range of material. One warrant related to our client.

The warrant contained some information as to what HMRC were entitled to seize but did not on its face explain what the business under investigation was, who the suspects were, what the investigation concerned or quite what documents were being sought; other than for example “banking records relevant to the offence under investigation”. We brought a claim for judicial review and were granted permission to challenge the warrant.

The court rejected the argument deployed by HMRC that the warrant could be remedied by reliance upon information provided to the Magistrates, information given to the officers in a briefing before the search, and explanations provided to the suspect at the scene. The court disapproved the reasoning in Fitzpatrick and endorsed our interpretation of the law that the warrant itself must explain both to those executing it and the occupants what is within and outside its terms.

The court also expressed concern that HMRC had made no notes of what was said at the ex parte hearing and that no reasons were given or recorded by the Magistrates.

The warrant was declared to be unlawful and quashed, costs were awarded to the Claimant. HMRC had agreed to return the originals shortly before the hearing.

It is clear following this judicial review that those who apply for and issue warrants in future must set out what they are entitled to seize within the warrant so both the suspect and those executing the warrant can understand from the document itself what can and cannot be taken. It is also now clear that even in cases smaller and more straightforward than (for example) Tchenguiz, a proper note of what is said at the ex parte hearing must be kept and reasons noted by the issuing court. Failure to comply with the safeguards under section 15 will lead to warrants being quashed and in an appropriate case the return of the material and or damages and costs.

Monty Jivarj of Jeffrey Green Russell Solicitors acted for the Claimant instructing Helen Malcolm QC and Matthew Butt of 3 Raymond Buildings.

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